COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, AtLee and Senior Judge Frank Argued at Norfolk, Virginia

CLARISSA GREGORY MEMORANDUM OPINION * BY v. Record No. 0657-16-1 JUDGE ROBERT P. FRANK APRIL 11, 2017 CITY OF HAMPTON DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge Charles E. Haden for appellant. Kimberly Karle, Assistant City Attorney (Vanessa T. Valldejul i, City Attorney; Therese M. Price, Assi stant City Attorn ey; Gregory C. Bane, Guardian ad litem for the minor children, on brief), for appellee.
Clarissa Gregory (“mother”) app eals the termination of her res idual parental r ights to her children, G.H. and C.G., pursuan t to Code § 16.1-283(C)(2). Sh e contends the evidence was insufficient to support the trial court’s decision to terminate her parental rights because it failed to show that termination was in t he children’s best interests a nd that the Hampton Department of Social Services (“HDSS”) made “ reasonable and appropriate effor ts” to assist her in remedying substantially the condi tions which led to or required continuat ion of the children’s foster care placement. She also maintains t he trial court erred in approvi ng adoption as the goal of the foster care service plan. Finding no e rror, we affirm the decision of the trial court.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - BACKGROUND On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in the circuit court and grant to t hat party the benefit of ‘all r easonable inferences fairly deducible therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767 (2005) (quoting Logan v. Fairfax C ty. Dep’t of Human Dev., 13 V a. App. 123, 128, 409 S.E.2d 460, 463 (1991)). In March 2014, mother sought assistance from HDSS because her children’s father was allegedly physically and sexually abusing her in front of the c hildren. Mother sta ted she was afraid that the children’s father was going to kill her. At the time mother sought aid from HDSS, C.G. was approximately eighteen months old, and G.H. was almost three mo nths old. Mother had substance abuse issues and suffe red from a mental di sability. She also h ad no housing. HDSS expedited trans itional housing for mot her and the childre n and referred mother to several services. However, moth er repeatedly left the transiti onal housing with the children without notifying HDSS of her whereabou ts, and she also violated the sa fety plan. Due to concerns about mother’s mental health and her “persistent” violations of the s afety plan, HDSS offe red respite care to the children. When mother refused, HDSS obtained an emergen cy removal order and took custody of the childre n on April 1, 2 014. Both children were p laced in foster homes. The initial goal of the foster care service plan was to return the children home. When C.G. and G.H. entered HD SS’s custody, they displayed sign ificant developmental delays. Both children were asse ssed and diagnosed with long-te rm disabilities. The foster parents secured appointments wit h specialists to address these developmental delays. The foster parents were nurturing, and the chi ldren thrived in their home. To achieve mother’s reunificat ion with the children, HDSS reco mmended that mother secure stable independent housi ng and financial security for at least six months, engage in no- 3 - illegal activity and acc rue no further criminal charges, comple te parenting education classes, comply with medication manageme nt through the Community Service s Board, undergo individual therapy, complete subs tance abuse assessment and tre atment, and participate in supervised visitation. A year after the children were removed, mother had failed to s ecure stable housing and employment. Her drug screenings were positive. Although mothe r completed two parenting classes, she was never able t o move beyond supervised visitatio n because she was unable to secure stable housing and was inc onsistent with her medications

. On March 2, 2015, mother was di scharged from Partners In Recov ery after testing positive for alcohol. She continued to drink and use marijuana. 1 Mother was charged with possession of marijuana in May 2014 and May 201 5. On June 12, 2015, HDSS pet itioned to change the goal from return home to ad option. The foster p arents of both child ren expressed the ir willingness to adopt them. In June 2015, HDSS also petitioned the juvenile an d domestic relations district court (“J&D court”) to terminate mother’s parental rights. The J&D c ourt granted the pe tition on July 21, 2015, and terminated mo ther’s parental rights pursuant to Code § 16.1-283(C)(2). Mother appealed to circuit court. The circuit court heard t he appeal on March 21, 2016. The evi dence showed that mother was never able to obtain stabl e housing or employment and was i nconsistent with her medications management. Indeed, mother testified that she had recently s topped taking her mental health medications as pr escribed without first consultin g with her mental health provider. While she had participated in subs tance abuse treatment, she co ntinued to struggle with her sobriety. Mother had incurred several illega l substance-relate d criminal charges while her

1 Social worker Shirley Bowie t estified that mother reported she had smoked marijuana as recently as the week prior t o the circuit court termination hearing.- 4 - children were in foster care: a possession of marijuana charge on May 15, 2014; an open alcohol container charge on May 23, 2014; a nd a possession of marijuana charge on May 26, 2015. Mother did complete some paren ting classes and participate in s upervised visitation with the children; however, HDSS’s witnes ses agreed that she could never progress to unsupervised visitation due to chi ld safety concerns. By February of 2016, mother ha d resumed living with the childr en’s father. Initially, mother indicated that she and the father intended to care for t he children in the father’s home. By the following month, however, mother called social worker Shirl ey Bowie and left a message that she had moved out of father’s home and that “she had concerns [ about] the children coming to stay with him due to his substance abuse.” Mother testified that sh e told Bowie that “there were drugs in the house [and that] [i]t wasn’t for him. It was for myself as well. I was engagi ng in drugs. [The father] was engaging in drugs.” Mother agreed that it was “bes t for the kids not to be in a drug environment.” When asked at the hearing to outline her plan for the children to live with her, mother answered: From my understanding, the kids will not be returned to me. As far as the parent, I do agree wit h [the father] getting the kid s, like I told Ms. Bowie, if there’s some type of drug treatment lined up

. That would be a great fit. My i ntention was for him to get the kids. He has a two bedroom apartment and works a job. Mother acknowledged that she wa s not in a position to take the children due to her housing situation. She stated that, if th ey lived with their father, s he would maintain visitation and her relationship with them.- 5 - On March 21, 2016, the circuit cour t terminated the parental r ights of mother and father 2 and approved the new goal of adoption. This appeal followed.
ANALYSIS On appeal, mother contends tha t the trial court erred by termi nating her parental rights because HDSS failed to present clear and convincing evidence th at termination was in the children’s best interests or that HDSS made “reasonable and app ropriate efforts” to assist her in remedying the conditions that led to the children’s placement i n foster care. For the same reasons, she also contends the trial court er red by approving t he foster care plan goal of adoption. With regard to the approval of t he adoption plan, however, moth er maintains that HDSS failed to meet its evidentiary burden by a pr eponderance of the evidence. 3 When reviewing a decision to termi nate parental rights, we pre sume the circuit court “thoroughly weighed all the evidenc e, considered the statutory requirements, and made its determination based on the child ’s best interests.” Id. at 265 -66, 616 S.E.2d at 769 (quoting Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 7 , 614 S.E.2d 656, 659 (2005)). “The trial court’s judgment , ‘when based on evidence heard ore tenus , will not be disturbed on

2 Father did not appeal the termi nation of his residual parental rights to this Court.

3 Mother also argues that she was deprived of due process becaus e HDSS sought termination of her par ental rights pursuant to Code § 16.1-283( B), but the trial c ourt’s termination decision was based up on Code § 16.1-283(C )(2). However, mother ’s assignment of error attacking the trial court’s term ination decision is limited solely to the sufficiency of the ev idence. Nowhere in either assignment of error does mother assert that she was depr ived of due process. Because her due process argument lies beyond the scope of the assignments of er ror, we decline to consider this argument. See Winston v. Commonwealth, 51 Va. App. 74, 82, 654 S.E.2d 340, 345 (2007) (because an appellant did not include an argument in his questi ons presented (now assignments of error), the Court would not a ddress it on appeal). See also Rule 5A:20(e). Furthermore, because mother did not raise her due process argument below, sh e has failed to preserve this argument for appeal. Rule 5A:18. Mother does not request cons ideration of this argument pursuant to the ends of justice exception, and we decline to apply the e xception sua sponte. Edwards v. Commonwealth, 41 Va. App . 752, 761, 589 S.E. 2d 444, 44 8 (2003) ( en banc ).- 6 - appeal unless plainly wrong or w ithout evidence to support it.’ ” Id. at 266, 616 S.E.2d at 769 (quoting Logan, 13 Va. App. at 128, 409 S.E.2d at 463). “In it s capacity as factfinder, therefore, the circuit court retains ‘bro ad discretion in making the decis ions necessary to guard and to foster a child’s best interests.’ ” Id. (quoting Farley v. Farley, 9 V a. App. 326, 328, 387 S.E.2d 794, 795 (1990)). Pursuant to Code § 16.1-283(C)(2), [t]he residual parental rights of a parent or parents of a chil d placed in foster care . . . may be terminated if the court finds, base d upon clear and convincing evidence, t hat it is in the best interests of the child and that:

. . . . [t]he parent or parents, without good cause, have been unwilling or unable within a reasonable period of time not to exceed twelve months from the date the child was placed in foster care to remedy substanti ally the conditions which led to or required continuation of the c hild’s foster care placement, notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such end. Proof that the parent or parents, without good cause, have failed or been unable to make substantial progress towards elimination of the condi tions which led to or required continuation of the child’s foster care placement in accordance with their obligations under and within the time limits or goal s set forth in a foster care pla n filed with the court or any oth er plan jointly designed and agr eed to by the parent or parents an d a public or private social, me dical, mental health or other rehabilitative agency shall consti tute prima facie evidence of this condition. The court shall take into consideration the pr ior efforts of such agencies to reh abilitate the parent or parents prior to the placement of the child in foster care. At the termination hearing, mother argued only that she had do ne “her best” and conceded she did not expect to have the c hildren returned to her due to her lack of appropr iate housing. Instead, she asked that the trial court return the children to their father based upo n her belief that he could “get the drug situation under control.” Mother’s sole ob jection to the court’s orders terminating her parental rights states only “Seen and objected to for the reasons stated on the- 7 - record.” Likewise, that is the sole objection made by mother t o the trial court’s order changing the foster care goal to adoption. Mother made no assertion at the termination hear ing that HDSS failed to offer reasonable and appropriate services, nor did she contest the approval of t he foster care plan. Thus, she failed to preserve these arguments for app eal. Rule 5A:18 . Mother’s gen eral objection to the trial court’s final order was insufficient to p reserve them. Rule 5A:18 requ ires that “a specific argument must be made to the trial court at the a ppropriate time . . . . A gene ral argument or an abstract reference to the law is not sufficient to preserve an issue.” Edwards v. Co mmonwealth, 41 Va. A pp. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ) (citation omitted). “[N]eithe r [Code § 8.01-384] nor Rule 5A:18 is complied wit h merely by objecting generally to an orde r.” Lee v. Lee, 1 2 Va. App. 512, 515, 404 S.E.2d 7 36, 738 (1991) ( en banc ). A trial court must be alerted to the precise issue to which a party objects. See Neal v. Commonwealth, 15 Va. App. 4 16, 422, 425 S.E .2d 521, 525 (1992). Mother does not ask tha t we consider her argument to a ttain the ends of justice, and we decline to apply that exception to Rule 5A:18 sua sponte . Edwards, 41 Va. App. at 761, 589 S.E.2d at 448. Therefore, we w ill not consider her ar guments on appeal. 4
Of the several issues raised i n mother’s assignment of error, the only one preserved is whether the trial court erre d in finding by clear and convincin g evidence termination was in the best interests of the children.

4 In her brief, mother referred to a number of pages in the tran script, pursuant to Rule 5A:20(c), where she claims each a ssignment of error was preserv ed. However, a review of those pages reveals that mother neve r argued HDSS failed to offer rea sonable and appropriate services nor did she challenge the foster care plan.- 8 - HDSS must prove, by clear a nd convincing evidence 5 that it was in the children’s best interest for the parent’s residual pare ntal rights to be terminated. Co de § 16.1-283(C)(2). We conclude the trial court’s d ecision that termination was in the children’s best interests was neither plainly wrong nor w ithout evidence to support it. See Toms, 46 Va. App. at 266, 616 S.E.2d at 769. Mother, who arg ued against termination on t he basis that the children should be placed with their father, ini tially sought assistance from H DSS based upon allegations that father was physically and sexua lly abusive toward her. Father also abused drugs and refused to participate in a drug treatment program until 2015. Despite se eking treatment in March 2015, he was unable to maintain his sobriety and tested positive for mar ijuana shortly before the termination hearing. On March 16, 2016, less than a week before the termination hea ring, mother called HDSS expressing concern about the children being with their fat her because of his continued drug abuse. Yet, only the mont h before, in February 2016, moth er was residing with father and still “engaging in” drug use wit h him, despite mother having at tended various drug counseling and treatment programs. At the termination hearing, mother, wh o had a long history of drug abuse, agreed it was “best” f or the kids not to be in a drug en vironment. Mother also acknowledged that her housing s ituation precluded her from taki ng custody of the children.

5 Clear and convincing evidence is that measure or degree of proof w hich will produce in the mind of the trier of facts a firm belie f or conviction as to the allega tions sought to be established. It is i ntermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt a s in criminal cases. It do es not mean clear and unequivocal. Gifford v. Dennis, 230 Va. 193, 198 n.1, 335 S.E.2d 371, 373 n. 1 (1985) (quoting Walker Agcy. & Aetna Cas. Co. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975)).- 9 - While she expressed a desire to s ee the children placed with th eir father rather than in foster care, that view was conditioned upon father’s ability to cease his dr ug abuse. Legal custody was awarded t o HDSS on April 1, 2014. At the ti me of the termination hearing, the children ha d been in foster ca re for nearly two ye ars. The children suffered from developmental delays and requi red frequent counseling and care. Both children improved and thrived in the care of the foste r parents, with whom they lived the majority of their lives. Since the children were placed in the custody of HDSS, a perio d of nearly two years, mother never achieved stable hous ing nor did she resolve her dr ug problem, despite participating in substance abuse programs. “It is clearly not in the best in terests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent w ill be capable of resuming [her] responsibilities.” Kaywood v. Ha lifax Cty. Dep’t of Soc. Servs ., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). We conclude the trial court di d not err in terminating mother’ s parental rights. Affirmed.